From the Desk of Kyle Riley: The Washington Court of Appeals failed to recognize the self-service exception, which allows a plaintiff to avoid establishing that a business had notice of a dangerous condition, in a case where the plaintiff slipped and fell 15 feet from the checkout line. Specifically, the Court denied use of the exception because there was no evidence of a relationship between the hazardous condition and the self-service mode of operation.
Claims Pointer: Insurers should be aware that the plaintiffs claiming use of the self-service exception are unlikely to successfully assert it when there is no evidence that there was a relationship between the self-service operations and the dangerous condition.
Tavai v. Wal-Mart Stores, Inc., 307 P.3d 811 (August 13,2013).
Avrilirene Tavai was shopping at a Wal-Mart store when she slipped and fell about 15 feet from the checkout counter. It was undisputed that there was water on the floor where Tavai fell, but her daughter, who accompanied her, did not notice any water prior to Tavai’s fall. Neither the assistant manager nor Tavai’s daughter noticed any items in the area that could be a potential source of the water. In addition, the assistant manager did not see wet footprints or track marks in the surrounding area, and the surveillance cameras did not record the area of the fall.
Tavai subsequently sued Wal-Mart for injuries arising from the slip and fall. Wal-Mart successfully obtained summary judgment by arguing that it did not have notice of the wet floor. Tavai appealed.
Generally, business owners must take reasonable care to protect its patrons from harm if the owner knew or should have known of the harmful condition. Tavai, however, argued the Pimentel exception (also known as the “self-service” exception) applied. This exception holds that notice of the condition need not be shown when the nature of the land owner’s business and his operations are such that the existence of unsafe conditions on the premises is reasonably foreseeable. Self-service areas are locations where customers serve themselves, goods are stocked, customers handle the grocery items, or where customers otherwise perform duties that the business owner’s employees usually perform. However, the exception does not apply to the entire self-service area. It only applies to the areas where there is a relationship between the dangerous condition and the self-service mode of operation of the business.
In denying Tavai’s claim, the Court of Appeals observed that application of the exception is typically a matter of law. The Court held that Tavai did not present sufficient evidence for a reasonable juror to find that that there was a relationship between the self-service mode of operation and the area in which she fell. Tavai argued that Wal-mart sold “grab-and-go” drinks, but there was not any evidence that customers spilled liquids on the way to the check-out counter, that the drinks were sold in open containers, or that Wal-mart encouraged customers to open the drinks before purchase. Thus, there was not any evidence that spills of liquids were reasonably foreseeable in the area where Tavai fell as a result of the mode of operation of the store. Although Tavai presented evidence of 51 other accidents at the store, there was not any evidence that the falls occurred in the area where she fell. The Court also rejected Tavai’s request for a spoliation instruction for a failure to preserve security footage. The reason being because the evidence demonstrated that the footage would not have captured the fall and Tavai did not submit any admissible evidence that Wal-mart has a policy in place to retain video footage whenever there is an accident.
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